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Supreme Court accepts eight new cases

Madison, Wisconsin -
September 23, 2011

The Wisconsin Supreme Court has voted to accept eight new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. Court of Appeals opinions available online for the newly accepted cases are hyperlinked.

2010AP594 State v. Gilbert2010AP1155 State v. Hunt In these consolidated cases, the Supreme Court examines whether the state may bring a Wis. Stat. ch. 980 commitment petition to judgment when the subject of the petition is in the custody of the Department of Corrections (DOC).

Gilbert was in prison because of sequential convictions, one of which was a predicate offense under ch. 980. On Dec. 4, 2006, before Gilbert's mandatory release date, the state filed a petition seeking his commitment.

Following a hearing on March 22, 2007, the circuit court found probable cause to believe that Gilbert was sexually violent and ordered him transferred to the Wisconsin Resource Center "or such other authorized institution as may be determined by the DHS (Department of Health Services)."

While detained for evaluation, Gilbert violated his parole. He was revoked and returned to the custody of the DOC. He was later released on parole again. He violated this parole as well, and was again revoked and returned to the custody of the DOC. Gilbert was placed at the Milwaukee Secure Detention Facility on Nov. 29, 2007 for the remainder of the ch. 980 commitment proceeding. On Feb. 7, 2008, a jury found that Gilbert was a sexually violent person. The circuit court ordered him committed to the DHS "for control, care and treatment until such time as [he] is no longer a sexually violent person." The court also ordered commitment "to institutional care in a secure mental health facility."

Gilbert filed a post-conviction motion arguing that the commitment proceeding became moot when his parole was revoked because the relief sought by the state, commitment to the custody of DHS pursuant to §§ 980.06 and 980.065, was impossible since he was in the custody of the DOC. The circuit court denied the motion.

Similarly, Hunt asks the Supreme Court whether a ch. 980 petition should be dismissed when, while the petition is pending, the subject of the petition is returned to the custody of the DOC.

Hunt was convicted of two offenses in 2003, one of which was a ch. 980 predicate offense. He was sentenced to five years of initial confinement and five years of extended supervision on the predicate offense and to a concurrent nine-month term on the other offense. Prior to Hunt's Sept. 4, 2007 release on prison on extended supervision, the state filed a ch. 980 petition for his commitment. The circuit court found probable cause to believe that Hunt was eligible for a ch. 980 commitment and ordered him transferred to a detention facility approved by the DHS and ordered a probable cause hearing.

While in the custody of the DHS, and while the ch. 980 petition was pending, Hunt was disruptive, violent and abusive toward a staff member of the Wisconsin Resource Center. On May 29, 2008, an administrative law judge revoked Hunt's extended supervision. On Aug. 21, 2008, the circuit court ordered Hunt re-confined to prison for two years. Hunt's presumptive release date was on or about Aug. 21, 2010. Hunt was transferred to the Racine Correctional Institution.

Hunt moved to dismiss the ch. 980 commitment petition or, in the alternative, to be transferred to "an approved DHS facility." The circuit court denied both requests. Hunt remained at Racine Correctional during the remaining steps of the commitment proceedings. Following a trial to the court which occurred during his reconfinement period, Hunt was found to be a sexually violent person and was ordered committed. The circuit court explained that under the commitment order, Hunt was to be transferred to a DHS facility after he completed the re-confinement period.

Gilbert and Hunt argue that because they were both in the custody of the DOC at the time their commitment orders were issued, the orders were incapable of being executed and the proceedings should have been dismissed as moot. The Court of Appeals disagreed.

The state says incarceration while a person is subject to a ch. 980 commitment order is not unconstitutional. The state says it is the language of the statute, not its application, which determines whether a statute is punitive for constitutional purposes. See Hudson v. United States, 522 U.S. 93, 99 (1997). The state says Gilbert was still serving a sentence at the time he committed the act that resulted in his re-incarceration, and both State v. Szulczewski, 216 Wis. 2d 495, 574 N.W.2d 660 (1998) and State v. White, 2000 WI App 147, ¶9, 237 Wis. 2d 699, 615 N.W.2d 667 at least implicitly concluded that in the absence of a stay, a criminal sentence takes precedence over a civil commitment. From Milwaukee County.

2010AP2061 Fond du Lac Co. v. Helen E.F. This case examines whether a person who has Alzheimer's or similar dementia may also be found to have a mental illness for purposes of a ch. 51 involuntary commitment and whether certain medications constitute "treatment" under the statute.

A decision by the Supreme Court could have wide-ranging implications, as virtually every county in the state has filed proceedings under ch. 51, seeking the involuntary commitment of persons with dementia who exhibit attributes of mental illness in the form of a treatable mood or psychotic disorder.

Some background: Helen E.F. has been in a nursing home for about six years. Her dementia has progressed to the point where she is very limited in her verbal communications. Her appearance at the commitment proceedings was waived since she would not be able to understand or participate meaningfully.

Helen was taken to St. Agnes Hospital on April 12, 2010. On April 15, 2010, a probable cause hearing was conducted on a prior ch. 51 petition. After this hearing, the court commissioner concluded there was not sufficient probable cause to proceed, and the petition was converted to a ch. 55, Stats., protective placement action.

A 30-day temporary guardianship was issued. The 30-day time period to proceed with the ch. 55 protective placement expired and a second ch. 51 petition was filed. Helen's attorney argued that the filing of the new ch. 51 petition amounted to an impermissible attempt to circumvent the 30-day time limit. The county argued that the new ch. 51 petition was a separate petition and that Helen had not been detained continuously under the old order because after the 30-day time period expired for the ch. 55 protective placement and temporary guardianship, Helen was "wheeled off the unit, and then she was brought back on."

During the probable cause hearing on the ch. 51 petition, and the final commitment hearing, psychiatrists testified about Helen's condition and that she posed a potential danger to herself and others.

The circuit court found that grounds for a ch. 51 commitment and an involuntary medication order had been proven by clear and convincing evidence. Helen appealed, and the Court of Appeals reversed and remanded.

The Court of Appeals said the question presented was whether the evidence presented at trial was sufficient, as a matter of law, to sustain Helen's ch. 51 involuntary commitment.

The Court of Appeals said its consideration of the law, the parties' arguments, the amicus briefs filed in the case and the task force report led it to conclude that Helen was not a proper subject for detainment or treatment under ch. 51 because Alzheimer's disease is not a qualifying mental condition under that chapter.

The Court of Appeals said contrary to ch. 51, ch. 55 specifically includes people with degenerative brain disorders when defining the scope of who may receive protective services and for whom emergency and temporary protective placements may be made.

Fond du Lac county argues that the Court of Appeals' decision will have a far reaching impact on nursing homes that provide care to dementia patients and may be subject to liability because the nursing facility must continue to house a patient who is striking out at staff or other residents, without access to available in-patient psychiatric treatment to address and alleviate the problem.

The county argues that the Court of Appeals' decision is in conflict with its earlier decision in In the Matter of the Mental Condition of C.J., 120 Wis. 2d 355, 354 N.W.2d 219 (Ct. App. 1984).

Helen says if the county truly believes that Alzheimer's patients could be better served by ch. 51 commitments, then the county's remedy is to ask the legislature to re-write the commitment statutes. Helen says plainly, Alzheimer's disease is a degenerative brain disorder that causes irreversible decline. From Fon du Lac County.

2011AP987 Nickel v. USA This case examines whether a U.S. Department of Justice attorney not licensed to practice law in Wisconsin must comply with a state Supreme Court "pro hac vice" rule requiring sponsorship by an attorney licensed in the state. Or, whether the Supremacy Clause of the U. S. Constitution and federal law preempt the state requirement.

Some background: The dispute over the qualifications for legal representation arises from a much larger and more complex case involving Ambac Assurance, a Wisconsin insurance company. Ambac Assurance is a subsidiary of Ambac Financial Group, a holding company headquartered in New York that suffered large losses insuring risky mortgage debt.

After Ambac Assurance experienced financial difficulties, it, with the approval of the Wisconsin Insurance Commissioner, created a segregated account that is being rehabilitated by the Dane County Circuit Court.

Initially, Ambac Assurance's most troubled policies (about 1,000 out of a total of 15,000) were allocated to the segregated account, with the healthier policies remaining in its general account.

Ambac Financial Group received about $700 million in tentative federal income tax refunds from the Internal Revenue Service (IRS) and transferred those refunds to Ambac Assurance. Ambac Assurance was severally liable to repay the tentative refunds if they were erroneously obtained.

In November 2010, Ambac Assurance purported to allocate its potential liability to repay the tentative refund to the segregated account. The corresponding $700 million of refunded money remained in the general account. The allocation was accompanied by an ex parte injunction by the Dane County Circuit Court prohibiting the IRS from attempting to collect the $700 million from either Ambac's segregated account or its general account, which was not in rehabilitation. On Jan. 24, 2011, the circuit court entered a final, appealable order approving Ambac's plan of rehabilitation. The plan made the injunction against the IRS permanent.

The United States filed a timely notice of appeal on March 9, 2011. Other than a copy of a notice of removal to the U.S. District Court for the Western District of Wisconsin, the notice of appeal was the first document filed by the United States in the circuit court

The United States' notice of appeal was signed by Robert J. Kovacev, an attorney in the Tax Division of the U.S. Department of Justice, who was licensed to practice law in Washington, D.C. and California, but is not admitted to the Wisconsin Bar.

On March 25, 2011, the Wisconsin Insurance Commissioner moved the Court of Appeals to dismiss the United States' appeal, arguing that Wis. Stat. § 802.05(1) requires all filings in the Wisconsin state courts to be signed by an attorney admitted in Wisconsin. The Court of Appeals granted the Insurance Commissioner's motion to dismiss.

The Court of Appeals said one of the rules with which a notice of appeal must comply is the subscription requirement in § 802.05, which says that a paper "shall be signed by at least one attorney of record in the attorney's individual name," on behalf of a represented party and that Kovacev did not qualify or have a sponsoring attorney.

The United States argues that 28 U.S.C. § 517, which provides that Department of Justice attorneys "may be sent by the attorney general to any state or district in the United States to attend to the interests of the United States in a suit pending in a court ... of a state" preempts any state law or regulation that would otherwise preclude a Department of Justice attorney from appearing in state court.

The Court of Appeals said instead SCRs 10.03(4) and 23.02(2) explicitly permit non-resident attorneys to appear under the sponsorship of a Wisconsin attorney.

The United States says the drastic consequence of the Court of Appeals' holding, which is the dismissal of an appeal in a case where $700 million is at issue, raises a question of fundamental fairness because a plain reading of the exemptions would not alert a Justice Department attorney acting pursuant to a federal statute that he must seek pro hac vice admission before he can appear as attorney of record. From Dane County.

2010AP2298 Payday Loan Store of WI v. Mount In this certification, the Supreme Court examines whether annualized interest rates in excess of a thousand percent per year for a short-term loan are per se unconscionable under the Wisconsin Consumer Act (WCA), Wis. Stat. § 425.107?

Some background: Between August 2008 and January 2009, Jesica Mount entered into multiple contracts with Payday for short-term personal loans. The annualized interest rates on the loans varied from 446 percent to 1,338 percent.

Payday initiated a small claims action against Mount in December 2009 after Mount failed to make required loan payments. Mount answered the complaint, denying liability and counterclaiming for violations of the WCA.

Mount moved for summary judgment, attaching the twenty loan agreements between Payday and Mount and Mount's affidavit describing the loans she entered into and their interest rates. The court determined that the interest rates were unconscionable and granted summary judgment to Mount. Payday appealed.

The issue in this case, according to the Court of Appeals, is whether the annualized interest rates for Payday's loans to Mount were per se unconscionable under Wis. Stat. § 425.107. The Court of Appeals says resolving this issue requires answering two questions: (1) Does the WCA preclude a determination that a particular interest rate is unconscionable? (2) If it does not, what is the legal standard to apply and what type of evidence is necessary to establish unconscionability?

Under Wis. Stat. § 425.107(1), a court may refuse to enforce a consumer credit transaction if it determines, as a matter of law, that any aspect of the transaction is unconscionable. The WCA provides a series of guidelines for courts in determining whether a consumer credit transaction is unconscionable, including, among other things, whether a practice unfairly takes advantage of the lack of knowledge, ability, experience or capacity of customers; whether those engaging in the practice know of the inability of customers to receive benefits properly anticipated from the goods or services involved; and that there exists a gross disparity between the price of goods or services and their value as measured by the price at which similar goods or services are readily obtainable.

Payday Loan Stores of Wisconsin, Inc. contends that no interest rate is per se unconscionable under the WCA, because the act states that there is no limit on finance charges. It then contends that, even if the WCA allows a finding that a particular interest rate is per se unconscionable, the summary judgment material in this case was insufficient to support that determination.

Justices Ann Walsh Bradley and David T. Prosser did not participate. From La Crosse County.

2010AP208 Aurora Consolidated Health Care v. LIRC This worker's compensation case examines whether Wis. Stat. §§ 102.17(1)(g) and (d)1 require the state Labor and Industry Review Commission (LIRC) to allow an opportunity for cross-examination or rebuttal of an independent medical examiner under the circumstances presented in this case.

Some background: The dispute arose in February 2001 when Jeffrey Schaefer, employed as a courier by Aurora, slipped on ice and fell onto concrete while making a delivery. Although Schaefer experienced lower back pain and bilateral leg pain, he finished his shift. On March 5, 2001, Schaefer went to Dr. James Cain, complaining of the injuries sustained in the fall.

An MRI showed Schaefer had an L5-S1 recurrent disc herniation. Following surgery, Schaefer had recurrent pain and was referred to Dr. Ali Sadeghi for pain management, who provided treatment in the form of steroid injections, as well as trigger point injections and oral medications to control lower back and bilateral leg pain.

Subsequently, unrelated to his work injury, Schaefer developed right hip pain in 2005. In 2006, Schaefer underwent a total right hip replacement with positive results. Schaefer does not seek worker's compensation for difficulties related to his hip problem.

Dr. Sadeghi completed a form with Schaefer's work restrictions and, in a post-hearing submission, explicitly stated the limitations stemmed from Schaefer's work-related back injury and not from his subsequent hip problem. Aurora conceded liability for the 2001 fall and paid temporary total disability benefits, temporary partial disability benefits, and some associated medical expenses.

In March 2006, Schaefer filed a worker's compensation claim for the 2001 fall, seeking additional compensation. Based on Cain's and Sadeghi's medical opinions, the administrative law judge (ALJ) concluded Schaefer was permanently and totally disabled and had sustained a permanent total loss of earning capacity, based on the vocational expert reports.

Aurora sought review. It argued the ALJ should have disregarded Sadeghi's opinion because his opinion was "untruthful" and contained restrictions not merely for Schaefer's 2001 fall, but also for his unrelated hip problem. LIRC remanded with directions to the ALJ to appoint an independent medical examiner to assess only Schaefer's disabilities related to the 2001 fall. After an independent expert's review, both parties submitted a third set of reports from respective vocational experts, which found one of the expert's answers relevant to their loss of earning capacity analysis. As a result, Aurora requested LIRC remand to the Department of Workforce Development (a third time) to allow Aurora to cross?examine Ebert about his answers to the ALJ's three questions. Alternatively, Aurora asked that three additional questions be submitted LIRC denied both requests. It affirmed the Department's decision finding Schaefer totally and permanently disabled and that Schaefer sustained a permanent total loss of earning capacity. Aurora argued on appeal that §§ 102.17(1)(g) and 102.17(1)(d)1. require LIRC to provide an opportunity for Aurora to cross-examine Ebert as the independent medical examiner appointed by the Department. The Court of Appeals concluded § 102.17(1)(g) provides only that Aurora be permitted an opportunity to "rebut" the independent medical examiner's "report," and § 102.17(1)(d)1 only requires Aurora be allowed to cross-examine experts "presented by a party." The Court of Appeals said it need not determine what level of deference to apply because, under any level, it would conclude LIRC acted within its statutory authority when it denied Aurora's request to cross-examine the independent medical examiner. Applying a plain language analysis, the Court of Appeals said "the right to rebut a report is not the same as the right to cross-examine the independent medical examiner who drafted the report." Aurora claims the Court of Appeals' misinterpretation of § 102.17(1)(g) and (d)1. creates a conflict in the law and denies due process. From Milwaukee County.

2009AP2848 Orlowski v. State Farm This certification, originally arising from a traffic accident, asks the Supreme Court to resolve an apparent conflict between a Court of Appeals' decision and a previous Supreme Court decisions involving under insured motorist coverage and "the collateral source rule."

Some background: Lindy Orlowski sustained injuries in a motor vehicle accident arising out of the negligence of an underinsured motorist. After recovering the policy limit from the underinsured motorist's liability carrier, she brought a claim under her UIM policy against State Farm Mutual Automobile Insurance Company. Orlowski and State Farm submitted the claim to arbitration under the terms of the UIM policy.

In its initial decision, the arbitration panel found that there was "no negligence on the part of Orlowski and that the collateral source rule does not apply as per the case of Heritage Mutual. Therefore, the panel awarded $2,325 for unreimbursed wage loss; $9,498.55 for the claimed medical lien for the medical bills paid, and also awarded the plaintiff $2,000 for the out-of-pocket medical expenses paid by the claimant. The panel also awarded the plaintiff $42,500 for past and future pain, suffering and disability.

The "claimed medical lien" of $9,498.55 was the subrogation claim by Orlowski's health insurance carrier, United Healthcare. Orlowski asked for a supplemental finding of the full reasonable value of her medical expenses. The arbitrators issued a supplemental decision, noting that there was no challenge to the reasonableness and necessity of the medical services.

The parties stipulated that the difference between the amounts billed and the amount paid by Orlowski and her health insurance was due to health insurance company write-offs or reductions, and that Orlowski was no longer responsible for payment of these bills. However, the parties did not stipulate that these damages were not "sustained" as that term is used in the State Farm policy.

Orlowski filed a petition in Milwaukee County Circuit Court asking for modification of the arbitration award pursuant to Wis. Stat. § 788.11 to conform the award to the UIM policy by including the full reasonable value of the necessary medical services she received.

The circuit court found that under the UIM policy, Orlowski was legally entitled to collect the full reasonable value of medical expenses from the tortfeasor, thus the arbitrator's refusal to award that amount of the medical expenses was a refusal to apply the plain language of the UIM policy and constituted a manifest disregard of the law. The circuit court modified the award. State Farm appealed.

The primary issue is whether a plaintiff may recover from her own insurer under a UIM policy the reasonable value of the medical treatments she received or the lesser amount that was actually paid by the plaintiff, her health insurer, the underinsured motorist or his insurance company.

The Court of Appeals frames the issue this way: In order to determine what the language of an underinsured motorist (UIM) policy requires, and thus whether an arbitration panel exceeded its authority and issued an award that must be modified under WIS. STAT. § 788.11, we must consider how Wisconsin Supreme Court law in collateral source cases such as Koffman v. Leichtfuss, 2001 WI 111, 246 Wis. 2d 31, 630 N.W.2d 201, and Leitinger v. DBart, Inc., 2007 WI 84, 302 Wis. 2d 110, 736 N.W.2d 1, effects our holding in Heritage Mut. Ins. Co. v. Graser, 2002 WI App 125, 254 Wis. 2d 851, 647 N.W.2d 385, where we held that collateral source law is inapplicable to any UIM policy. If Graser is incompatible with controlling supreme court law, we have no power to withdraw or modify language in Graser to resolve the conflict. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). From Milwaukee County.

The Court of Appeals says only the Supreme Court has the power to overrule, modify or withdraw language from a published opinion of the Court of Appeals.

2010AP1551-CR State v. Williams In this certification, the Supreme Court examines whether court commissioners have the power under the current version of the Wisconsin Constitution to issue search warrants. A decision could have wide-ranging implications on the powers of court commissioners throughout the state.

In asking the Supreme Court to take the case, the District IV Court of Appeals said that although Wis. Stat. § 757.69(1)(b) appears to grant search warrant powers to court commissioners, the appellant in this case, Douglas Meier Williams, argues that the legislature may not confer that power by statute because the Wisconsin Constitution does not authorize the legislature to grant judicial powers to court commissioners.

The Court of Appeals said: "We certify this issue because its resolution appears to carry with it enormous statewide implications for litigants and the judiciary. Although this case involves the specific power to issue search warrants, it is apparent that Williams' argument calls into question several other powers authorized by Wis. Stat. § 757.69(1). In the criminal arena alone, this includes conducting initial appearances and preliminary hearings…"

Some background, On Nov. 11, 2008, a Beloit police officer filed an affidavit and application for a search warrant of Williams' residence. A Rock County circuit court commissioner issued the search warrant as requested. The police searched Williams' residence that same evening and discovered marijuana plants, marijuana paraphernalia, and items used for growing marijuana.

The state charged Williams with one count of manufacturing THC, one count of maintaining a drug trafficking place, and one count of being a dealer in possession of a controlled substance without a tax stamp. Williams filed a motion to suppress the evidence discovered during the search on the ground that the statute authorizing circuit court commissioners to issue search warrants, Wis. Stat. § 757.69, was an unconstitutional delegation of judicial authority, and therefore the search warrant in his case had been a nullity. The circuit court denied the motion, and Williams ultimately pled no contest to the one count of manufacturing THC. Williams appealed.

Williams contends that issuing a search warrant "is a judicial power that requires the determination of probable cause." He primarily cites the Supreme Court's decision in Shadwick v. Tampa, 407 U.S. 345, 350 (1972), for this proposition.

Williams also points to the fact prior to 1977, there was a separate constitutional provision, Art. VII, § 23, that expressly authorized the appointment of court commissioners and vested in them "such judicial powers as shall be prescribed by law." He argues that the deletion of this provision by the 1977 amendments removed the authority of circuit court commissioners to exercise judicial power.

The State argues that the issuance of a search warrant is not the exercise of judicial power and therefore the authority to do so need not be conferred by the constitution. It also points to the Supreme Court's decision in Shadwick, which held that it was not a violation of the Fourth Amendment for a municipal court clerk to issue an arrest warrant pursuant to a Florida statute. 407 U.S. at 352.

The state argues that because Wis. Const. Art. I, § 11 is interpreted to provide the same guarantees as the Fourth Amendment, it is also permissible under the state constitution for some officer other than a judge to issue warrants. From Rock County.

2010AP2398 Zwiefelhofer v. Town of Cooks Valley In this certification, the Supreme Court examines the factors that distinguish a zoning ordinance from an ordinance enacted under a town's general police powers. More specifically, the Court is asked whether the Town of Cooks Valley's (the Town) non-metallic mining ordinance, which was approved by the town board but not the county board, is invalid as a disguised zoning ordinance that was not adopted in conformity with zoning procedures.

Some background: On July 14, 2008, the Town enacted an ordinance entitled "Chapter 19 Mining Ordinance" (Chapter 19). The Town adopted a revised Chapter 19 in December 2008. The Town did not follow the procedure set forth in Wis. Stat. § 60.62 for adoption of zoning ordinances when it enacted either the original version or the revised version, and Chapter 19 was not approved by the Chippewa County Board of Supervisors.

Four plaintiffs (collectively Zwiefelhofer) challenged the ordinance, which requires an application for a non-metallic mining permit.

The circuit court invalidated the ordinance, concluding it is actually a zoning regulation that was not approved by the Chippewa County Board as required by Wis. Stat. § 60.62(3). The circuit court accepted Zwiefelhofer's argument that the regulations imposed by the ordinance can only be imposed by a zoning ordinance because they constitute a substantial interference with land use. See Arden H. Rathkopf, et. al. 1 Rathkopf's, The Law of Zoning and Planning § 1:10 (West 2005).

The circuit court relied substantially on a test created by the Court of Appeals in Gordie Boucher Lincoln-Mercury Madison, Inc. v. City of Madison Plan Commission, 178 Wis. 2d 74, 503 N.W.2d 265 (Ct. App. 1993), which was later overruled by this court in Wood v. City of Madison, 2003 WI 24, ¶33, 260 Wis. 2d 71, 659 N.W.2d 31.

The Town has taken the position that Chapter 19 is not a zoning ordinance and therefore did not need to be approved by the county board.

The preamble to the ordinance recites its purpose as "to promote the health, safety, prosperity, aesthetics and general welfare of the people and communities within the town." It states its general intent "to regulate the location, construction, installation, alteration, design, operation and use of all nonmetallic mines so as to protect the health of residents and transients … [and] further the appropriate use and conservation of land and water resources."

The Town argues that zoning involves advanced determination of where future types of structures and their associated activities may be located, as opposed to regulatory ordinances requiring licenses that apply across a broad geographical area and are invoked only on a case-by-case basis when someone proposes to undertake that activity.

However, the Court or Appeals listed provisions within the ordinance it said have characteristics of land-use regulations.

Zwiefelhofer contends the primary distinguishing characteristic of a zoning ordinance is that it regulates where activities can take place, see David L. Ulrich Inc. v. Saukville, 7 Wis. 2d 173, 177, 96 N.W.2d 612 (1959), and this ordinance only regulates the areas where nonmetallic mines are located. The Town argues that its ordinance does not create any zones or districts, but applies to any location in the township. It views the ordinance as one regulating an activity anywhere in the township, not a location, district or zone. Citing Hobart v. Collier, 3 Wis. 2d 182, 185-86, 87 N.W.2d 868 (1958), Zwiefelhofer contends that the absence of multiple zones is one indicator of a zoning ordinance, but is not a controlling factor.

The Court of Appeals says that review by this court is necessary to create a test for distinguishing between zoning ordinances and general ordinances, such as licensing ordinances. The Court of Appeals states that it created such a test in Gordie Boucher, but because that decision was later overruled by this court, it may no longer be cited as precedent. Blum v. 1st Auto & Cas. Ins. Co., 2010 WI 78, ¶56, 326 Wis. 2d 729, 786 N.W.2d 78. Thus, it asserts that there is currently no clear precedent that distinguishes zoning ordinances from licensing ordinances.

A decision by the Supreme Court could help establish the test for determining whether a town ordinance constitutes a zoning ordinance that must be approved by the county board before it becomes valid under Wis. Stat. § 60.62(3). From Chippewa County.

Review denied: The Supreme Court denied review in the following cases. As the state's law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court: